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Prof. Kimberly Kessler Ferzan L’95 cautions against drawing ‘broad societal implications’ from Rittenhouse acquittal

November 19, 2021

“But it does raise a much broader question for what the law should be. We have to think about how individuals provoke fights,” said Ferzan.

Kimberly Kessler Ferzan L’95, Earle Hepburn Professor of Law and Professor of Philosophy, on the acquittal of Kyle Rittenhouse on all charges related to his killing two unarmed men and shooting a third, armed man during a protest in Kenosha, Wisconsin, last year:

It is difficult not to draw broad societal implications from this verdict. But I think we should be careful here. Wisconsin law had very narrow self-defense inquiries, and the question of whether the jurors appropriately made those calls is a distinct question from what the law should be. This is all the more difficult because the state had to disprove self-defense beyond a reasonable doubt, and that standard is a high one.

Specifically, although defendants lose rights if they provoke the attack in Wisconsin, they don’t lose the right to use deadly force if they retreated and if they did not plan to provoke deadly force. In other words, if you get involved in a fist fight and the other person pulls out a gun, you haven’t lost your right to self-defense if you try to run away and need to use deadly force to defend yourself. The question then is whether Rittenhouse, who did run away during both incidents, reasonably believed he faced an imminent threat of deadly force when Rosenbaum was reaching for him, and later, when he encountered the group that depending on one’s view of the facts, attacked or attempted to disarm him.

That inquiry is difficult and fact intensive. What was Rosenbaum doing? What was he reaching for? Did he plan to disarm Rittenhouse? Even if not, would Rittenhouse’s fear that that was Rosenbaum’s aim be reasonable? Ultimately, the prosecutor had to place tremendous weight on the fact that Rittenhouse fired four shots, and the first one would have been enough to alleviate the threat. But jurors could question the kind of choice that goes into pulling a trigger four times in such immediate succession. In other words, this was not cut and dry as a factual question.

But it does raise a much broader question for what the law should be. We have to think about how individuals provoke fights. Shouldn’t you lose the right to use deadly force if you act recklessly in provoking someone? If you bring a weapon to a situation in which you know it may be misinterpreted or exchanges may become heated and violent, shouldn’t that be enough to lose the right to kill someone based on the risk that you created?

Ultimately, that question turns on when it is that citizens run unjustifiable risks – a thorny and messy question in today’s culture wars. On the one side, Rittenhouse was someone who was looking for a fight and brought a gun. On the other, he was a citizen enforcing rule of law values in a society that authorizes weapons among its citizenry. What we should take away from this verdict, from the Arbery trial, and from the death of Travyon Martin (where George Zimmerman was part of a citizen’s watch) is that we need to think seriously about whether citizens should be entitled to go on the offense in our name — to bring weapons and seek to enforce laws — when we know that such actions may themselves be the trigger of violence and death.

Read more of our esteemed faculty’s perspectives on today’s pressing legal issues.